Saturday, April 7, 2018

The African Society of International Law has issued a call for papers for its seventh annual conference, to take place October 26-27, 2018, in Antananarivo, Madagascar. The theme is: "Africa and the International Law of the Sea." The call is here.

The Asian Infrastructure Investment Bank, first opened in 2016, is a 100 billion dollar multilateral development bank purpose-built to support infrastructure projects that enhance regional economic productivity.

Its arms reach far: in its first two years, AIIB has financed transport systems such as national motorways in Pakistan, railways in Oman, and rural roads in India; energy projects including natural gas pipelines in Azerbaijan and hydropower plants in Tajikistan; and the redevelopment of impoverished areas in Indonesia. Initiated by China, its membership is global, with regional powers from Korea to Saudi Arabia, and key players from Europe, Africa, and Latin America.

In a text that will appeal to general readers and legal specialists alike, Natalie Lichtenstein examines the Bank's mandate, investment operations, finance, governance, and institutional set up, as well as providing detailed analyses of the similarities and differences it has with other development banks - charting AIIB's story so far and anticipating its future.

Thursday, April 5, 2018

The age of human rights has been kindest to the rich. Even as state violations of political rights garnered unprecedented attention due to human rights campaigns, a commitment to material equality disappeared. In its place, market fundamentalism has emerged as the dominant force in national and global economies. In this provocative book, Samuel Moyn analyzes how and why we chose to make human rights our highest ideals while simultaneously neglecting the demands of a broader social and economic justice.

In a pioneering history of rights stretching back to the Bible, Not Enough charts how twentieth-century welfare states, concerned about both abject poverty and soaring wealth, resolved to fulfill their citizens’ most basic needs without forgetting to contain how much the rich could tower over the rest. In the wake of two world wars and the collapse of empires, new states tried to take welfare beyond its original European and American homelands and went so far as to challenge inequality on a global scale. But their plans were foiled as a neoliberal faith in markets triumphed instead.

Moyn places the career of the human rights movement in relation to this disturbing shift from the egalitarian politics of yesterday to the neoliberal globalization of today. Exploring why the rise of human rights has occurred alongside enduring and exploding inequality, and why activists came to seek remedies for indigence without challenging wealth, Not Enough calls for more ambitious ideals and movements to achieve a humane and equitable world.

In Wars of Law, Tanisha M. Fazal assesses the unintended consequences of the proliferation of the laws of war for the commencement, conduct, and conclusion of wars over the course of the past one hundred fifty years.

After a brief history of the codification of international humanitarian law (IHL), Fazal outlines three main arguments: early laws of war favored belligerents but more recent additions have constrained them; this shift may be attributable to a growing divide between lawmakers and those who must comply with IHL; and lawmakers have been consistently inattentive to how rebel groups might receive these laws.

By using the laws of war strategically, Fazal suggests, belligerents in both interstate and civil wars relate those laws to their big-picture goals. In Wars of Law, we learn that, as codified IHL proliferates and changes in character—with an ever-greater focus on protected persons—states fighting interstate wars become increasingly reluctant to step over any bright lines that unequivocally oblige them to comply with IHL. On the other hand, Fazal argues, secessionists fighting wars for independence are more likely to engage with the laws of war because they have strong incentives to persuade the international community that, if admitted to the club of states, they will be good and capable members of that club.

Why have states stopped issuing formal declarations of war? Why have states stopped concluding formal peace treaties? Why are civil wars especially likely to end in peace treaties today? Addressing such basic questions about international conflict, Fazal provides a lively and intriguing account of the implications of the laws of war.

Over the last two decades, international criminal procedure has become a recognized body of law, with textbooks, treatises, and law review articles discussing its rules and principles and theorizing its goals and methods. The term refers to the procedures used at the international criminal courts and tribunals created to address some of the most serious offenses, such as genocide, crimes against humanity, and war crimes. Some of these courts are fully international, like the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the permanent International Criminal Court (ICC). Others are “hybrid courts,” featuring a mix of domestic and international personnel, laws, and practices and including the Special Court for Sierra Leone (SCSL), the East Timor Special Panels for Serious Crimes, the Bosnia and Herzegovina War Crimes Chamber, the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Tribunal for Lebanon (STL). More hybrid courts are being created and proposed today, even as the appetite for international institutions appears on the decline.

Even as international criminal courts have proliferated and international criminal procedure has attained recognition as an independent corpus of law, foundational questions about the field remain. Can the diverse procedures used by these institutions be treated as part of a single, coherent system? Is international criminal procedure a blend of domestic traditions or a sui generis body of law, reflecting the special goals and needs of international criminal trials? What goals does it pursue, and how does it balance competing objectives?

Part II of the Chapter traces the development of modern international criminal procedure, first at the ad hoc tribunals for the former Yugoslavia and Rwanda and then at hybrid courts and the International Criminal Court. Part III discusses the ambitious and at times conflicting goals that international criminal procedure is said to pursue. These include goals commonly associated with domestic trials — providing a fair trial, establishing the truth, and enforcing the criminal law effectively. But some commentators believe that international courts — and by extension, the process these courts rely upon — also pursue broader, political goals, such as promoting the rule of law, fostering peace and reconciliation, creating a historical record as a means to educate future generations, and providing a sense of closure for injured individuals and communities. The international community has failed to agree on a clear ranking of these various objectives, however, and debates persist about which goal should take precedence when different goals are in tension. As Part IV documents, the disagreement about priorities helps explain much of the diversity we see in international criminal procedures, both across different courts and within the same court.

Accordingly, international criminal procedure is currently not a coherent legal system, but is rather best described as the product of a decentralized “network” or “community” of courts. Part V offers an evaluation of the pluralist character of international criminal procedure. While the diversity of procedures can help international criminal courts arrive at solutions that address more effectively the unique political, practical, and forensic challenges of dispensing international criminal justice, divergent procedural approaches within the same court raise concerns about predictability and equal treatment.

Media interest in the fates of people at sea has heightened across the last decade. The attacks and the hostage taking of victims by Somali pirates, and the treatment of migrants and asylum seekers in the Mediterranean, ask pressing questions, as does the sinking of the Costa Concordia off the Italian island of Giglio which, one hundred years after the Titanic capsized, reminded the world that, despite modern navigation systems and technology, shipping is still fallible. Do pirates have human rights? Can migrants at sea be turned back to the State from which they have sailed? How can the crews of vessels be protected against inhuman and degrading working and living conditions? And are States liable under international human rights treaties for arresting drug traffickers on the high seas?
The first text to comprehensively compare the legal rights of different people at sea, Irini Papanicolopulu's timely text argues that there is an overarching duty of the state to protect people at sea and adopt all necessary acts with a view towards ensuring enjoyment of their rights. Rather than being in doubt, she reveals that the emerging law in this area is watertight.

Veer Mayank, Do the Panels’ Treat Different Countries Differently: A Comparison of the ‘Panel Report in the India – Measures Concerning the Importation of Certain Agricultural Products from the United States’ and ‘Panel Report in United States – Certain Measures Affecting Imports of Poultry from China’

he number of non-state actors, in the past not accountable for committing international crimes or violating human rights, is proliferating rapidly. Their ways of operating evolve, with some groups being increasingly fragmented and others organizing transnationally or in cyber space. As non-state armed groups are involved in the vast majority of todays armed conflicts and crisis situations, a new and increasingly important question has to be raised as to whether, and at what point, these groups are bound by international law and thereby accountable for their acts.

In its Burmych and Others v. Ukraine judgment of October 2017 the European Court of Human Rights has dismissed more than 12.000 applications due to the fact that given that they were not only repetitive in nature, but also mutatis mutandis identical to applications covered by a previous pilot judgment rendered against Ukraine. This raises fundamental issues as to the role of the Court within the human rights protection system established by the ECHR, as well as those concerning the interrelationship between the Court and the Committee of Ministers.

The Paris Agreement, which was adopted in December 2015 and entered into force less than a year later, is the newest instrument to be adopted in the United Nations-sponsored global climate regime. The Paris Agreement takes its place under the 1992 Framework Convention on Climate Change and next to the 1997 Kyoto Protocol and 2012 Doha Amendment. After describing the historical evolution of the UN climate regime employing the tools of international law, this Article explores the structural, institutional, and legal relationships between the new Paris Agreement and the prior development and content of UN-sponsored efforts on climate protection under the auspices of the 1992 Framework Convention. The need for such an analysis is particularly urgent because the new instrument was purposely not identified as a “protocol,” and its relationship to the prior Kyoto Protocol is unclear.

This Article consequently traces the development of the universal, UN-anchored climate regime from its origins in the 1990s to the present moment, with particular attention to the structural relationship among its various components and historical junctures. The Article then examines the text and structure of the Paris Agreement, along with its context, against this background. The significance of the Agreement’s status as an instrument other than a “protocol,” and its uncertain textual and institutional relationship to the prior Kyoto Protocol, receive particular scrutiny. The Article concludes that the Paris Agreement, from a structural and institutional point of view, represents both a break with the past designed to initiate a new, globally-inclusive multilateral approach to climate protection, but also contains indications of continuity with prior questions of global climate policy.

José E. Alvarez (New York Univ. - Law) has posted The Human Right of Property (Univ. of Miami Law Review, forthcoming). Here's the abstract:

International law has long sought to protect property rights both on their own terms and as a “human right.” This article surveys the reality of internationalized property rights protections, particularly as protected by 21 human rights treaties. It addresses how the U.S. has contributed to the internationalization of the right, even while U.S. courts, along with many human rights advocates generally, continue to resist the idea that there is a “human right” to property protection that extends to a nation’s own citizens. The essay also canvasses the policy and jurisprudential objections to the idea of a human right of property and uses the property case law of the Inter-American Court of Human Rights to provide a non-instrumentalist defense of the right based on conceptions of human dignity.

In 2017 the International Law Commission adopted 15 Draft Articles, a Draft Preamble, and a Draft Annex on Mutual Legal Assistance, comprising the nucleus of what might someday become a new global treaty on crimes against humanity. This essay examines the history of the ILC Draft and analyzes several of its major provisions in light of the existing corpus of international criminal law as well as the work of the Crimes Against Humanity Initiative that preceded it. The essay concludes that the ILC Draft provides an excellent point of departure for the negotiation of a new treaty on crimes against humanity. It incorporates many elements of the Rome Statute, such as the definition of crimes against humanity, and solidifies the obligations of States to prevent and punish crimes against humanity. It also builds upon modern UN conventions on corruption and transnational organized crime to construct a robust model for interstate cooperation, and has other progressive and positive elements. At the same time, the Commission’s work could be enhanced and the new treaty made more robust by addressing certain deficiencies in the draft, many of which would either reinforce the jus cogens nature of the crime or enhance the preventive regime the Draft seeks to bring into existence.

With the resurgence of the field of international criminal justice in recent decades, expectations have increasingly been placed on international criminal courts to construct consistent and authoritative historical narratives about the mass atrocity situations that fall within their purview. Taking this expectation as its focus, this article seeks to illuminate the historical narrative pluralism that can arise both within and beyond the international criminal courtroom. Within the courtroom, two types of narrative pluralism are identified: first, inter-court narrative pluralism, which arises when different courts examine the same mass atrocity situation from different perspectives; and second, intra-court narrative pluralism, which emerges when narratives constructed within an international criminal judgment are revisited in later cases adjudicated by the same court. Beyond the courtroom, it is contended that even when international criminal courts manage to achieve inter-court and intra-court narrative consistency, in practice a range of social psychological and practical factors tend to generate a gap between the intended meaning of such narratives and their public or social meaning amongst different audiences. By illuminating the historical narrative pluralism that can arise both within and beyond the international criminal courtroom, this article calls for greater critical awareness of the constructed nature of the historical narratives rendered within international criminal judgments, as well as a sobering of the expectations that are typically placed on international criminal courts both with respect to the construction of narratives within the courtroom and their reception beyond it.

Poverty, inequality, and dispossession accompany economic globalization. Bringing together three international law scholars, this book addresses how international law and its regimes of trade, investment, finance, as well as human rights, are implicated in the construction of misery, and how international law is producing, reproducing, and embedding injustice and narrowing the alternatives that might really serve humanity.

Adopting a pluralist approach, the authors confront the unconscionable dimensions of the global economic order, the false premises upon which they are built, and the role of international law in constituting and sustaining them. Combining insights from radical critiques, political philosophy, history, and critical development studies, the book explores the pathologies at work in international economic law today. International law must abide by the requirements of justice if it is to make a call for compliance with it, but this work claims it drastically fails do so. In a legal order structured around neoliberal ideologies rather than principles of justice, every state can and does grab what it can in the economic sphere on the basis of power and interest, legally so and under colour of law. This book examines how international law on trade and foreign investment and the law and norms on global finance has been shaped to benefit the rich and powerful at the expense of others. It studies how a set of principles, in the form of a New International Economic Order (NIEO), that could have laid the groundwork for a more inclusive international law without even disrupting its market-orientation, were nonetheless undermined. As for international human rights law, it is under the terms of global capitalism that human rights operate. Before we can understand how human rights can create more just societies, we must first expose the ways in which they reflect capitalist society and how they assist in reproducing the underlying terms of immiseration that will continue to create the need for human rights protection.

This book challenges conventional justifications of economic globalization and eschews false choices. It is not about whether one is "for" or "against" international trade, foreign investment, or global finance. The issue is to resolve how, if we are to engage in trade, investment, and finance, we do so in a manner that is accountable to persons whose lives are affected by international law. The deployment of human rights for their part must be considered against the ubiquity of neoliberal globalization under law, and not merely as a discrete, benevolent response to it.

The rights of indigenous peoples under international law have seen significant change in recent years, as various international bodies have attempted to address the question of how best to protect and enforce their rights. The United Nations Declaration on the Rights of Indigenous Peoples is the strongest statement thus far by the international community on this issue. The Declaration was adopted by the United Nations on 13 September 2007, and sets out the individual and collective rights of indigenous peoples, as well as their rights to culture, identity, language, employment, health, education, and other issues. While it is not a legally binding instrument under international law, it represents the development of international legal norms designed to eliminate human rights violations against indigenous peoples, and to help them in combating discrimination and marginalisation.

This comprehensive commentary on the Declaration analyses in detail both the substantive content of the Declaration and the position of the Declaration within existing international law. It considers the background to the text of every Article of the Declaration, including the travaux préparatoire, the relevant drafting history, and the context in which the provision came to be included in the Declaration. It sets out each provision's content, interpretation, its relationship with other principles of international law, and its legal status. It also discusses the significance and outlook for each of the rights analysed. The book assesses the practice of relevant regional and international bodies in enforcing the rights of indigenous peoples, providing an understanding of the practical application of the Declaration's principles. It is an indispensible resource for scholars, students, international organisations, and NGOs working on the rights of indigenous peoples

Dual-use export control is a field of law that regulates the export of items that serve both civilian and military purposes. In fact, a variety of materials, products, facilities, technologies and information which are critical for sustaining our civilian lives could also be mobilised for strengthening the military capabilities of the governments as well as non-state armed groups and terrorists. This paper aims at unveiling multi-faceted duality in the regulation of the cross-border transfer of dual-use items. International, EU and national laws concerning the export control of dual-use items involve a critical choice and weighting of potentially contradictory normative perspectives. While the area of law is sometimes perceived as technical, the export control of dual-use items is normatively charged as well as deeply political.

Claus Kreß, On the Activation of ICC Jurisdiction over the Crime of Aggression

Current Events

Andreas Zimmermann, A Victory for International Rule of Law? Or: All's Well that Ends Well?: The 2017 ASP Decision to Amend the Kampala Amendment on the Crime of Aggression

Darin Clearwater,
When (and How) Will the Crime of Aggression Amendments Enter into Force?: Interpreting the Rome Statute by Recognizing Participation in the Adoption of the Crime of Aggression Resolutions as ‘Subsequent Practice’ under the VCLT

Article

Talita de Souza Dias, The Retroactive Application of the Rome Statute in Cases of Security Council Referrals and Ad hoc Declarations: An Appraisal of the Existing Solutions to an Under-discussed Problem

Symposium: The Many Shades of International Criminal Justice

Alex Whiting, Foreword

Zachary D Kaufman,
The Prospects, Problems and Proliferation of Recent UN Investigations of International Law Violations

Beth Van Schaack, The Iraq Investigative Team and Prospects for Justice for the Yazidi Genocide

Cases Before International Courts and Tribunals

Nader Iskandar Diab, Challenges in the Implementation of the Reparation Award against Hissein Habré: Can the Spell of Unenforceable Awards across the Globe be Broken?

National Prosecution of International Crimes: Legislation and Cases

Wolfgang Kaleck & Patrick Kroker, Syrian Torture Investigations in Germany and Beyond: Breathing New Life into Universal Jurisdiction in Europe?